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Exhibit 3.1
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
PETCO ANIMAL SUPPLIES, INC.
PETCO ANIMAL SUPPLIES, INC., a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"General Corporation Law"), hereby certifies as follows:
1. The name of this corporation is PETCO Animal
Supplies, Inc. The Corporation was originally incorporated under the name PASI
SHELL COMPANY, and the original Certificate of Incorporation was filed with the
Secretary of State of the State of Delaware on April 9, 1991.
2. Pursuant to Sections 228, 242 and 245 of the General
Corporation Law, this Third Amended and Restated Certificate of Incorporation
further restates and integrates and amends the provisions of the Certificate of
Incorporation of PETCO Animal Supplies, Inc.
3. The text of the Certificate of Incorporation as
heretofore amended or supplemented is hereby restated and amended to read in its
entirety as follows:
"FIRST: The name of the corporation (hereinafter the
"Corporation") is
PETCO ANIMAL SUPPLIES, INC.
SECOND: The address of the registered office of the
Corporation in the State of Delaware is 2711 Centerville Road,
Suite 400, in the City of Wilmington, County of New Castle.
The name of the registered agent of the Corporation at that
address is the Corporation Service Company.
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THIRD: The nature of the business or purposes to be
conducted or promoted is to engage in any lawful act or
activity for which corporations may be organized under the
General Corporation Law of the State of Delaware (the "General
Corporation Law").
FOURTH: The Corporation is authorized to issue two classes of
stock to be designated, respectively, "Common Stock" and
"Preferred Stock." The total number of shares of which the
Corporation shall have authority to issue is Two Hundred Fifty
Five Million (255,000,000) of which (i) Two Hundred Fifty
Million (250,000,000) shares shall be Common Stock, par value
$.001 per share, and (ii) Five Million (5,000,000) shares
shall be Preferred Stock, par value $.01 par share.
The Preferred Stock may be issued from time to time
in one or more series, each series to be appropriately
designated by a distinguishing letter or title, prior to the
issue of any shares thereof. The Board of Directors is hereby
authorized, by filing a certificate pursuant to the General
Corporation Law, to fix or alter from time to time the
designation, powers, preferences, privileges and rights of the
shares of each such series, including, without limitation, the
dividend rights, dividend rate, conversion rights, voting
rights, rights and terms of redemption (including sinking fund
provisions, if any), the redemption price or prices, the
liquidation preferences, any other designations, preferences
and relative, participating, optional or other special rights,
and any qualifications, limitations or restrictions thereof,
of any wholly unissued series of Preferred Stock, and the
number of shares constituting any such unissued series and the
designation thereof, or any of the foregoing; and to increase
(but not above the total number of authorized shares of the
class) or decrease (but not below the number of shares of such
series then outstanding) the number of shares of any series of
Preferred Stock subsequent to the issue of shares of that
series. In case the number of shares of any series shall be so
decreased, the shares constituting such decrease shall resume
the status which they had prior to the adoption of the
resolution originally fixing the number of shares of such
series.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: 1. The business and affairs of the Corporation
shall be managed by or under the direction of a Board of
Directors. The authorized number of directors shall be set
forth in the Bylaws of the Corporation as adopted or as set
from time to time by an amendment to the Bylaws duly adopted
by the Board of Directors or by the stockholders.
2. The directors shall be divided into three
classes, designated Class I, Class II and Class III. The
number of directors in each class shall be the whole number
contained in the quotient arrived at by dividing the number of
directors by three, and if a fraction is also contained in
such quotient then if such fraction is one-third (1/3) the
extra director shall be a member of Class III and if the
fraction
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is two-thirds (2/3) one of the extra directors shall be a
member of Class III and the other shall be a member of Class
II. Each director shall serve for a term ending on the date of
the third annual meeting of stockholders next following the
annual meeting at which such director was elected, provided
that directors initially designated as Class I directors shall
serve for a term ending on the date of the 2003 annual
meeting, directors initially designated as Class II directors
shall serve for a term ending on the date of the 2004 annual
meeting and directors initially designated as Class III
directors shall serve for a term ending on the date of the
2005 annual meeting. Notwithstanding the foregoing, each
director shall hold office until such director's successor
shall have been duly elected and qualified or until such
director's earlier death, resignation or removal. If the
number of directors is changed, any increase or decrease shall
be apportioned among the classes so as to maintain the number
of directors in each class as nearly equal as possible, but in
no event will a decrease in the number of directors shorten
the term of any incumbent director. Vacancies on the Board of
Directors resulting from death, resignation, removal or
otherwise and newly created directorships resulting from any
increase in the number of directors may be filled solely by a
majority of the directors then in office (although less than a
quorum) or by a sole remaining director, and each director so
elected shall hold office for a term that shall coincide with
the remaining term of the class to which such director shall
have been elected. Whenever the holders of one or more classes
or series of Preferred Stock shall have the right, voting
separately as a class or series, to elect directors, the
nomination, election, term of office, filling of vacancies,
removal and other features of such directorships shall not be
governed by this ARTICLE SIXTH unless otherwise provided for
in the certificate of designation for such classes or series.
3. No director may be removed from office by
the stockholders except for cause with the affirmative vote of
the holders of not less than a majority of the total voting
power of all outstanding securities of the Corporation then
entitled to vote generally in the election of directors,
voting together as a single class.
SEVENTH: The following provisions are inserted for the
management of the business and the conduct of the affairs of
the Corporation and for the further definition of the powers
of the Corporation and its directors and stockholders:
1. In furtherance and not in limitation of the
power conferred by statute, the Board of Directors is
expressly authorized to make, alter or repeal the bylaws of
the Corporation.
The stockholders may adopt, amend or repeal
the bylaws only with the affirmative vote of the holders of
not less than 66 2/3% of the total voting power of all
outstanding securities of the Corporation then entitled to
vote generally in the election of directors, voting together
as a single class.
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2. Elections of directors need not be by
written ballot unless the bylaws of the Corporation so
provide.
3. Any action required or permitted to be taken
at any annual or special meeting of stockholders may be taken
only upon the vote of stockholders at an annual or special
meeting duly noticed and called in accordance with the General
Corporation Law, and may not be taken by written consent of
stockholders without a meeting.
4. Special meetings of stockholders may be
called by the Board of Directors, the Chairman of the Board of
Directors, the President or the Secretary of the Corporation
and may not be called by any other person. Notwithstanding the
foregoing, whenever holders of one or more classes or series
of Preferred Stock shall have the right, voting separately as
a class or series, to elect directors, such holders may call
special meetings of such holders pursuant to the certificate
of designation for such classes or series.
EIGHTH: No director of this Corporation shall be personally
liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty
to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of the law, (iii) under
Section 174 of the General Corporation Law or (iv) for any
transaction from which the director derived an improper
personal benefit.
If the General Corporation Law is hereafter amended
to authorize corporate action further limiting or eliminating
the personal liability of directors, then the liability of the
director to the Corporation shall be limited or eliminated to
the fullest extent permitted by the General Corporation Law,
as so amended from time to time. Any repeal or modification of
this Article EIGHTH by the stockholders of the Corporation
shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the
Corporation existing at the time of such repeal or
modification.
NINTH: The Corporation reserves the right to amend, alter,
change or repeal any provisions contained in this Certificate
of Incorporation, in the manner now or hereafter prescribed by
the General Corporation Law; PROVIDED, HOWEVER, that no
amendment, alteration, change or repeal may be made to
Articles SIXTH, SEVENTH and NINTH without the affirmative vote
of the holders of not less than 66 2/3% of the total voting
power of all outstanding securities of the Corporation then
entitled to vote generally in the election of directors,
voting together as a single class. All rights at any time
conferred upon the stockholders of the Corporation by this
Certificate of Incorporation are granted subject to the
provisions of this Article NINTH.
TENTH: Meetings of stockholders may be held within or
without the State
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of Delaware, as the bylaws of the Corporation may provide. The
books of the Corporation may be kept (subject to any provision
contained in the General Corporation Law) outside of the State
of Delaware at such place or places as may be designated from
time to time by the Board of Directors of the Corporation or
in the bylaws of the Corporation.
ELEVENTH: Each reference in this Certificate of Incorporation
to any provision of the General Corporation Law refers to the
specified provision of the General Corporation Law of the
State of Delaware, as the same now exists or as it may
hereafter be amended or superseded."
4. The foregoing amendment and restatement of the
Certificate of Incorporation has been duly approved and adopted by the Board of
Directors and the stockholders of the Corporation in accordance with the
provisions of Sections 228, 242 and 245 of the General Corporation Law.
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IN WITNESS WHEREOF, PETCO ANIMAL SUPPLIES, INC. has caused
this Certificate to be signed by Brian K. Devine, its Chief Executive Officer
and President, and James M. Myers, its Secretary, this 27th day of February,
2002.
PETCO ANIMAL SUPPLIES, INC.
a Delaware corporation
By: /s/ Brian K. Devine
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Brian K. Devine
Chief Executive Officer and President
ATTEST
By: /s/ James M. Myers
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James M. Myers
Secretary